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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10395
Non-Argument Calendar
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D.C. Docket No. 3:16-cr-00171-MMH-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERWIN PHILLIPS BURLEY,
a.k.a. "Blue Jay",
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 27, 2019)
Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Erwin Burley appeals his sentence of 96 months of imprisonment for
knowingly persuading, inducing, and coercing a woman to travel in interstate
commerce with the intent for her to engage in prostitution. 18 U.S.C. § 2422(a).
Burley argues that his sentence is substantively unreasonable. We affirm.
We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). When reviewing the
reasonableness of an above-guideline sentence, we “may consider the extent of the
deviation but must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. We will
reverse a sentence for substantive unreasonableness only if we are “left with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” United
States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).
The district court did not abuse its discretion when it varied upward to
address the magnitude of Burley’s sex trafficking crimes and the maltreatment of
his victims. The district court was troubled that Burley, who had been indicted for
two counts of forcible sex trafficking, 18 U.S.C. § 1591, one count of transporting
N.R. and S.W. in interstate commerce for prostitution, id. § 2421, and two counts
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of persuading the women to travel interstate to engage in prostitution, id.
§ 2422(a), was allowed “to plead guilty to the far least significant of the charges
brought against him [that involved only N.F.] [because that] ha[d] a significant
impact on his guidelines and his potential sentence.” And the district court
observed that Burley’s plea agreement reduced what would have been an advisory
sentencing range of 292 to 325 months of imprisonment to a range of 41 to 57
months of imprisonment. Burley’s mistreatment of his victims was, as the district
court stated, “egregious.” He advertised their services online to ensure they could
meet his demands to earn up to $2,000 each day, and when they failed to comply,
he beat them with a pistol, a telephone cord, and his hands. He demanded their
earnings, yet he fed them only one time a day and forced them to pay for their
contraception, which they often were unable to do. Burley also gave N.F. ecstasy
to stay awake and shaved her head. The district court reasonably determined that
Burley’s advisory guideline range was inadequate to “reflect the seriousness of
[his] actual offense conduct,” to “promote respect for the law,” to “adequately
deter” him from future similar conduct, and to “protect the public” in the light of
his “history and characteristics” that generated a criminal history category of V.
See 18 U.S.C. § 3553.
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We cannot say that the district court committed a clear error of judgment in
determining that a sentence 39 months above the high end of Burley’s sentencing
range best served the objectives of sentencing. See Irey, 612 F.3d at 1189. Burley
argues that his “offense conduct . . . was already taken into account by” the four-
level enhancement he received for promoting a commercial sex act, United States
Sentencing Guidelines Manual § 2G1.1(b)(1) (Nov. 2016), but that enhancement
focuses on “fraud or coercion that occurs as part of the offense and anticipates no
bodily injury,” id. § 2G1.1 cmt. n.2. Burley also complains that the “district court
never explained exactly why [his] guideline range was inadequate,” but the district
court stated that it varied upward to address Burley’s use of profits to “advertise[]”
his victims and to “b[uy] drugs,” his “violen[ce]” against both women, and his acts
of “shav[ing] [N.F.’s] head, a brutally humiliating act” and “threatening [N.F.]”
after the “police had contacted her.” The explanation given by the district court
establishes it had a “reasoned basis” for its sentencing decision. See Rita v. United
States, 551 U.S. 338, 356 (2007). Burley’s sentence of 96 months of imprisonment,
which is well below his maximum statutory penalty of 240 months of
imprisonment, is reasonable. See United States v. Croteau, 819 F.3d 1293, 1310
(11th Cir. 2016).
We AFFIRM Burley’s sentence.
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